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2020 DIGILAW 216 (GAU)

Tinku Magor @ Kaita v. State Of Assam

2020-02-17

MIR ALFAZ ALI

body2020
JUDGMENT 1. Heard Ms. B Sarma, learned Amicus Curiae appearing for the appellant and Mr. MP Goswami, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 20.02.2018 passed by the learned Sessions Judge, Dhemaji in Special Case No.7(DH)/2016, whereby the appellant was convicted under section 4 of the POCSO Act and sentenced to Rigorous Imprisonment for 10 (ten) years and fine of Rs.5,000/- with default stipulation. 3. As per the prosecution case, on 10.02.2016, at about 12.00o clock when the minor daughter of the informant (Pw-2) was playing, the appellant took her to a nearby bamboo grooves by inducing her and subjected her to sexual assault. On the basis of the said FIR, police registered Silapathar PS case No.36/2016 under section 376(1) IPC read with section 6 of the POCSO Act . During the course of investigation, police recorded the statement of the victim and other witnesses, got her examined by the doctor, seized certain articles and on completion of investigation submitted charge-sheet against the present appellant under section 376(1) read with section 6 of the POCSO Act. 4. In course of trial, learned Sessions Judge framed charge under section 4 of the POCSO Act to which the appellant pleaded not guilty. Nine witnesses were examined by the prosecution in order to bring home the charge against the appellant and on appreciation of evidence, learned Sessions Judge convicted the appellant under section 4 of the POCSO Act and awarded sentence as indicated above. 5. Aggrieved the appellant preferred the instant appeal. 6. Learned Amicus Curiae submits that except the victim being a small girl of 7 (seven) years, there was no other direct witness of the occurrence and her statement was also not consistent and therefore, learned trial Court ought to have recorded the conviction of the appellant on the sole testimony of the victim. Learned Addl. PP supporting the conviction and sentence contends that prosecution has proved the charge against the appellant beyond reasonable doubt and as such, the impugned conviction and sentence of the appellant calls for no interference. 7. I have considered the submissions made by the learned counsel for the appellant and scrutinised the evidence brought on record. 8. Learned Addl. PP supporting the conviction and sentence contends that prosecution has proved the charge against the appellant beyond reasonable doubt and as such, the impugned conviction and sentence of the appellant calls for no interference. 7. I have considered the submissions made by the learned counsel for the appellant and scrutinised the evidence brought on record. 8. The first witness examined by the prosecution was one Pratibha Das who stated that about one year ago, while she went to graze her Goats, she noticed the victim, a small girl crying, who told her that a boy had done bad act with her. She further stated that she had seen blood on the pant of the victim and she was crying in pain. Accordingly she brought her home and handed her over to her mother. The evidence of this witness remained uncontroverted as no cross-examination was done. 9. The victim has been examined as Pw-3. As she was aged about 8 (eight) years only at the time of deposition, learned Sessions Judge tested her competence by a voir dire test and having been satisfied that she was capable to understand the question put to her and to give rational answer thereto, learned Special Judge recorded her deposition. The victim stated in her evidence that while she was playing near 'Bogori' tree, the accused asked her to go to the shop in order to bring bidi. She further stated that from the shop, the accused took her behind the rail line and asked her not to raise any hue and cry and took her inside the bamboo grooves. She further stated that the accused had done bad things with her and the old lady having seen her brought her back. She also stated that she had bleeding on her private part. 10. The mother of the victim has been examined as Pw-2. She also stated that the accused asked the victim to go to the shop for bringing bidi and thereafter he followed her and committed rape on her. According to her, Pw-1 brought her daughter from the place of occurrence and she had noticed bleeding on her private part and immediately she took her to the hospital. During cross-examination she stated that she also noticed her face swollen as she was beaten when she tried to shout. 11. The doctor Dr. According to her, Pw-1 brought her daughter from the place of occurrence and she had noticed bleeding on her private part and immediately she took her to the hospital. During cross-examination she stated that she also noticed her face swollen as she was beaten when she tried to shout. 11. The doctor Dr. Chandra Kanta Mili (Pw-9) who examined the victim found the following injuries on the person of the victim: External Genitalia : Labia majora - bruising was present. Labia minor - tear was found, premium - no injury, hymen - absent and tenderness. Labia minora - tear was found. Vagina and cervix - lacerated injury on the left vaginal wall, redness around the vaginal wall. 12. Pw-5 stated that she had seen Pw-1 lifting the victim on her shoulder. She also stated to have seen the victim crying. She further stated that on being asked by her, the victim told that the accused committed bad act with her. 13. Pw-4 & Pw-6 was hearsay witness as they have heard about the occurrence later on. 14. A dispassionate scrutiny of the testimony of Pw-1, Pw-2, Pw-3, Pw-5 and Pw-9, the doctor shows that oral testimony of Pw-1 who met the victim immediately after the occurrence and took her to her home fully corroborated the evidence of Pw-3, the victim. The medical evidence as deposed by Pw-9 also supported the oral testimony of the victim, inasmuch as, the medical examination done immediately after the occurrence, shows signs of injury and violence on the private part of the victim. Though the victim did not state specifically the act done by the accused, the medical evidence speaks loud and clear that she was subjected to violent sexual assault and all these evidence of the prosecution witness including medical evidence remained unshaken. Thus the evidence of Pw-3, the victim supported by the uncontroverted evidence of Pw- 1 who met the victim immediately after the occurrence coupled with the medical evidence leaves no room for doubt that the accused subjected the victim, a minor girl of about 8 (eight) years to penetrative sexual assault. 15. It is the settled position of law that in a sexual offence, the conviction can be based solely on the oral testimony of the victim if her testimony is found to be fully reliable. 15. It is the settled position of law that in a sexual offence, the conviction can be based solely on the oral testimony of the victim if her testimony is found to be fully reliable. In the instant case, even though the victim has not stated specifically what the accused had done. The medical evidence and the oral evidence of Pw-1 who met the victim immediately after the occurrence as well as Pw-5 & Pw-2 leaves no room for doubt that she was subjected to penetrative sexual assault. When the evidence of the victim is fully corroborated by other witnesses as well as the medical evidence, there is no reason to disbelieve the oral testimony of the victim, only because she was a minor child of about 8 (eight) years. 16. When the prosecution has proved the charge against the accused beyond reasonable doubt, I find no reason to defer with the findings of the learned trial Court recording conviction of the appellant under section 4 of the POCSO Act. Apparently, the occurrence took place in the year 2016 before the amendment of the POCSO Act in 2019 and as such, the old Act shall apply in the present case. 17. Having considered the young age of the accused and his social background as well as the other attending facts and circumstance of the case, I am of the view that the sentence for a period of 7 (seven) years would meet the ends of justice. Since the offence was committed in 2016, the substantive sentence is modified and reduced to imprisonment of 7 (seven) years. Accordingly the accused is sentenced to RI for 7 (seven) years. The sentence of fine awarded by the learned trial Court and the default imprisonment calls for no interference. With the above modification in the substantive sentence of imprisonment, the appeal filed by the appellant stands partly allowed to the extent as indicated above. 18. Appreciating the assistance rendered by Ms. Bijita Sarma, learned Amicus Curiae, it is provided that she will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Sarma. 19. Send down the LCR along with a copy of this judgment.